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Influenza is a highly contagious acute viral infection of the respiratory tract, causing significant morbidity and mortality on an annual basis worldwide.1 However, influenza affects different groups differently, being particularly dangerous for many patients in health care facilities, notably the elderly, the immunocompromised, the critically ill, and young children.2,3,4,5 Influenza in these populations can result in severe, prolonged, devastating illness, and death.4,6 Health care workers of all types are at risk of occupational exposure to (and subsequent illness from) influenza, due to their contact with patients who may carry the virus. The direct implication of that is that health care workers themselves may act as potential vectors for nosocomial transmission of influenza to vulnerable patients whom the disease would most jeopardise.7,8
Nosocomial spread of influenza has been shown in many health care facilities, including longterm care facilities, oncology units, transplant units, neonatal intensive care units, general medical and paediatric wards, emergency departments, and other facilities.5,9,10 The risk is compounded by the tendency of health care workers to continue to work, despite being ill with influenza.11,12,13 It is, therefore, a problem that adds to the disease burden over and above the many other possible routes of infection (from family members, other members of the public, and so on). Furthermore, the virus can be transmitted to patients by both symptomatic and asymptomatic health care workers. Thus, simply staying home from work when manifestly ill is not an effective strategy to prevent nosocomial transmission,6, 14,15 as the virus may be shed for at least one day prior to symptomatic illness.16 On average, only 50 percent of people show classic symptoms of the illness, yet can shed the virus for five to ten days.17,18
The most efficient means of preventing a significant number of influenza infections, and the resulting morbidity and mortality, is an annual pre-exposure vaccination. Inactivated influenza vaccine provides 70–90 percent protection against influenza infection in healthy people under 65.12,19 However, the influenza vaccine is not as effective among the older population and those with chronic illness.20 These populations need the additional protection provided by “ring vaccination”, ie immunisation of those who care for, and live with, vulnerable patients who may not develop the optimal immunologic response to the vaccination.7 The influenza vaccination is safe; it is made of inactivated virus incapable of replication inside the human body, and thus, incapable of causing an infection. The only common side effect is minor injection site soreness for one to two days.7 Systemic effects are no more common than with placebos21 and severe reactions are very rare. In 1967, the swine influenza vaccine was associated with a slight increase in Guillian-Barre syndrome but subsequent studies have not shown an increased incidence associated with influenza vaccine.17 Despite studies demonstrating that the annual influenza vaccination of health care workers is associated with a reduction of morbidity and mortality among patients22,23 and New Zealand DHBs having established voluntary programmes to provide free influenza vaccinations to health care workers, vaccination rates among New Zealand health care workers are very poor. Only about 20–40 percent coverage rates have been achieved.24,25 Vaccination rates are lowest among nursing staff, 24,25 which reflects a worldwide trend.26,27,28 This is of particular concern, as nurses are the health care workers in closest contact with patients.
Multiple studies have been conducted worldwide to examine why health care workers do not receive the influenza vaccination. These include concerns about adverse reactions, perceived lack of susceptibility, and alleged lack of vaccine effectiveness.8, 13,28, 29,30 Anecdotal reports in New Zealand suggest these findings also hold in the New Zealand context.25 These concerns show insufficient knowledge about influenza and the influenza vaccination, and act as a significant barrier to greater vaccination rates.8,31 It is, therefore, not surprising to find nurses are the most likely to have a deficit of knowledge.26
In an article in the New Zealand Medical Journal (NZMJ), we [McLennan and Celi, along with Roth] demonstrated the relevance of the Health and Safety in Employment Act 1992 to this issue.24 The Act applies to all New Zealand workplaces, and its focus is on the systematic management of health and safety, requiring employers to maintain safe working environments and to implement sound practice. The Act imposes specific duties on employers to take all practicable steps to eliminate every “significant hazard”, which is defined as meaning a hazard that is an actual or potential cause or source of, inter alia, “serious harm”, which includes “communicable disease”.32 Section 15 of the Act also states that: “Every employer shall take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person.”32
The fact the majority of health care workers are currently failing to be vaccinated against influenza constitutes a “significant hazard” under the Health and Safety Act. This action by health care workers – of exposing themselves in an unvaccinated state to patients, co-workers and others in the workplace – also threatens to harm the vulnerable patient populations in health care facilities.24
It is clear the current voluntary opt-in programmes established by DHBs have failed to adequately address this issue. It may also be said that DHBs are failing to meet the legal duties imposed on them under the Act to take “all practicable steps” to eliminate every “significant hazard”, and to ensure that no action or inaction of any employee while at work harms any other person; that they have not implemented sound practice in regards to this issue.
To rectify this situation, we argued in our NZMJ article (on the basis of the Health and Safety Act provisions noted above) that the influenza vaccination should be mandatory for all health care workers with direct patient contact, unless a medical contraindication exists.24 We have come to see, however, that this argument was ultimately incomplete. Once the right to refuse medical treatment that exist under New Zealand law is taken into account, it is clear this argument needs to be modified.
One of the most significant places that the right to refuse medical treatment may be found in New Zealand law is section 11 of the Bill of Rights Act. This provides that: “Everyone has the right to refuse to undergo any medical treatment.”33 While the Bill of Rights does not override other enactments, section 6 of the Bill of Rights does require that wherever an enactment can be given a meaning consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other meaning.33 Of course, the Health and Safety Act can be given such a reading. What constitutes “all practicable steps” is obviously an open question.
Significant though that provision of the Bill of Rights is, the right to refuse medical treatment is not dependent upon it. Right 7(7) of the Code of Rights is also similar to section 11 of the Bill of Rights Act in that it provides that “Every consumer has the right to refuse services and to withdraw consent to services.”34 The right of a competent adult to refuse medical treatment is also well-established in common law.35
While it might seem obvious that the right to refuse medical treatment precludes the influenza vaccination being made mandatory, this is not as straightforward as it first seems. Making the annual influenza vaccination a mandatory requirement does not mean that people are going to be held down and given the influenza vaccination against their will, rather, it would mean putting a clause in health care workers agreements requiring them to get the vaccination.
It may be argued that making the influenza vaccination a mandatory requirement does not breach health care workers’ right to refuse medical treatment, as staff can refuse this medical treatment by not signing their agreement. This argument, however, is likely to ultimately fail. Given health care workers would not have a job if they did not sign the agreement, the courts would likely hold this to be a very coercive situation; that health care workers are not actually “free” to refuse this medical treatment in such a situation, that consent would not be freely given.
Of course, given the current shortages of health care workers in this country, any position that may lead to health care workers leaving their job would not be wise, or good for patient care. Indeed, it has been argued that compulsory vaccination will not achieve improved vaccination rates in health care workers, and that such an approach will simply inflame anti-vaccination groups and others who join because of their views on the role of the state in deciding what individual choice is.36 The difficulties and costs associated with infringement and penalties, would also far outweigh the value; that the public cost would exceed the public benefit, if this approach was taken, and such a burden would not justify an infringement on autonomy.35
How, then, can DHBs meet their legal duties under the Health and Safety Act, while at the same time respecting health care workers’ right to refuse medical treatment? We recommend that the annual influenza vaccination should be made the required default position for all health care workers, but that a declaration form be included as part of the process, so those who choose not to be vaccinated, who wish to “opt-out”, are required to think through and professionally acknowledge and document why they are making their decision.
This form should clearly state a number of key points: that the staff member knows the employer takes the issue seriously; that the staff member understands they have been offered the vaccine free of charge; that the staff member understands that the professional medical and nursing organisations believe the vaccination of health care workers is important for patient safety; and that the staff member signs that they decline to be vaccinated.
Such an approach would respect health care workers’ right to refuse medical treatment and is a useful means for people who are honestly opposed to vaccination, and to distinguish them from those who are simply too lazy or indifferent to get vaccinated.
In addition, more effective educational programmes will also need to be put into place.25 As noted earlier, the better a person’s knowledge regarding influenza and influenza vaccination, the more likely that person is to get vaccinated. The reasons many health care workers give for not receiving the influenza vaccination also show insufficient knowledge about influenza and the influenza vaccination. Therefore, effective educational programmes will be an essential aspect of improving vaccination rates.
These measures would respect health care workers’ right to refuse medical treatment, as well as fulfilling the legal duties imposed on DHBs by the Health and Safety Act to take “all practicable steps” to eliminate every “significant hazard”, and to ensure that no action or inaction of any employee while at work harms any other person, in regards to this issue.
In conclusion, it is worth reflecting on the limits of this position and, in particular, of any education programmes that may be put in place. Even if having the influenza vaccination is made the required default position, and even if then best educational programmes are put in place, there are clearly going to be some health care workers who are not going to get the influenza vaccination, who are “honestly opposed” to it and will opt-out, despite what they are told.
What is actually going on in this conflict between those for vaccination, and those against it, though? Is it just that one of the parties’ beliefs about vaccination are true, and the other false? We don’t think so. To borrow the words of philosopher James Edwards written in another context, but equally applicable here: “What is at issue … is not, in the first instance, false belief – though that is certainly the way the matter is most likely to present itself to the parties involved – but a sensibility that cannot help but see actions and reactions as springing from belief, true or false. And both parties to the conflict share that sensibility, both think that they, and their lives, stand firmly on a view of things that is correct.”37
The conflict goes deeper than any particular belief. Such arguments cannot, therefore, be settled by a “reasonable” appeal to “the facts”, which are what most educational programmes are based on. There is a collision of sensibilities, and what is really needed is a change in sensibility, to alter some of those deep perspectives in terms of which experience is appropriated, ordered and understood.37,38 Yet, we lack any reliable method for preventing or resolving such collision, and perhaps we will always lack such a method, and maybe that is desirable. As James Edwards has argued, “[a]ny such method would be horrible, since it would rest on the discovery of a way to guarantee agreement in attitude”.37
While we may never be able to achieve perfect rates of vaccination among health care workers, we can, however, do much better. The measures advocated in this article represent a positive way forward.
The lead author would like to thank Professor of Law at Otago University, John Dawson, for his helpful comments.